Susan B. Gellman[*]
Frederick M. Lawrence[**]
The debate over bias-crime laws is a continuing one. Proponents of bias-crime laws have largely focused on the special harm to victims from bias crimes, believing that punishment of these harms is consonant with First Amendment principles, while opponents have been concerned that these laws punish not only conduct, but also bigoted thought and belief, in violation of the First Amendment. In this Essay, a longtime proponent and opponent of bias-crime laws clarify their differences and then proceed towards common ground. The end product is a proposed model bias-crime statute that adopts a thoughtful approach to the twin concerns of punishing the infliction of special harms and protecting freedom of thought.
For decades now, judges and legislators, scholars and lawyers, have discussed, debated, and deliberated upon the advisability, justification, and legality of laws singling out bias-motivated crimes, popularly known as "hate crimes," for special treatment in the criminal law and even for enhanced punishment. For much of that time, one of the authors has been an outspoken opponent of bias-crime laws,[1] while the other has been an outspoken proponent of them.[2] Having debated each other in print, we
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first had the opportunity to meet and debate in person at the Symposium organized by this Journal, "Perspectives on Hate Speech and Hate Crimes," on March 6, 2003. When invited to submit papers for publication in the Journal, we decided to attempt something new in bias-crime scholarship. Instead of separately writing papers arguing the respective positions we have long advocated, we jointly wrote a single paper in which we seek to identify the common ground on which proponents and opponents of bias-crime statutes might agree. After all, by this time, we understand each other's positions well. There is less and less purpose to endless rounds of, "Yes, it is," and, "No, it is not." As we agree on the goal, it seemed likely that together we could develop a proposed statute with which we could both live. We have proposed such a statute in this Essay.
The Essay proceeds through four Parts. In Parts II and III, we separately sketch the central tenets of the arguments for and against bias-crime legislation, respectively. Part IV consists of both an exposition of shared ideas and a kind of "point-counterpoint," where a shared concern on a general level leads to some lack of agreement on a more specific application. This Essay concludes with an outline of a joint Model Statute, or, perhaps better put, the latest stage of an ongoing discussion about a potential Model Statute.
This Essay was written with two goals in mind. First, more specifi-cally, we seek to probe for the common ground that may exist between us and thus perhaps between others in the long-running debate over bias-crime legislation. Second, more generally, we hope to offer a direction in which this and other debates might profitably proceed-after definition and distinction, toward compromise and conciliation. We do not intend to compromise that which cannot be compromised, but we do intend at the very least to clarify that which can be clarified. That is, after all, at least one model of the legislative process in a democratic society.
Bias crimes are the criminal manifestation of prejudice. They may be distinguished from parallel crimes-crimes that are identical in all respects save for the absence of bias motivation-in terms of the mental state of the actor as well as the nature of the harm caused.[4] A parallel
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crime may be motivated by any one of a number of factors, whereas bias crimes are motivated by a specific, personal and group-based reason: the victim's real or perceived membership in a particular group. Different bias-crime laws cover different groups. In the United States, every federal and state bias-crime law covers race, ethnicity, and religion in some form.[5] All states with bias-crime statutes except Arkansas and Utah also include sexual orientation, gender, or other characteristics.[6] There is much that can be said about the legal and social implications of a particular legislative determination to include or exclude a given group characteristic from a bias-crime law.[7] In this Essay, "group" will be used as the generic term for a category included in a particular state or local bias-crime law. In our Model Statute, these groups will be referred to collectively as "defined communities."
The damage caused by bias crimes is not limited to physical harm. A bias crime strikes its victim at the very core of his or her identity, creating a sense of vulnerability greater than that normally found in crime victims. Perhaps most dramatically, members of racial minorities who are the victims of bias crimes experience the attacks as a violent form of racial stigmatization.[8] The stigmatized individual may experience both
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clinical[9] and social[10] symptoms. The bias-motivated violence carries with it the unmistakable message that the victim and the group to which he or she belongs are of lesser worth.[11] Stigmatization of bias-crime victims is not limited to racially motivated bias crimes or to minority-group victims. Group-motivated crimes in general cause heightened psychological harm to victims over and above that caused by parallel crimes.[12]
Furthermore, bias crimes have a far broader impact than parallel crimes. They affect not only the immediate victim of the criminal behavior, but in addition both the "target community" that shares the victim's group characteristic and society as a whole.
Members of the target community do more than sympathize or even empathize with the immediate bias-crime victim.[13] They perceive the crime as though it were a direct attack on them.[14] A cross burning or a swastika scrawling will not just evoke similar feelings in other African Americans and Jews, respectively. Rather, members of these groups may perceive the criminal event as having threatened and attacked them personally.[15]
The harm to society at large from bias crimes stems from the violation not only of society's general concern for the security of its members, but also of its shared norms of equality among the citizenry and racial and religious tolerance.[16]
This societal harm is, concededly, highly contextual. In a society different from our own, the racial motivation for a crime may not implicate more significant social values than a criminal act motivated solely by dislike of the victim's eye color.[17] This contextuality helps determine which groups should and should not be included in a bias-crime law. The characteristics that ought to be addressed are those implicating societal fissure lines, i.e., divisions that run deep in the social history of a culture.[18] In the United States, the strongest case is for race. Racial discrimination, the
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greatest American dilemma, has its roots in slavery, the greatest American tragedy.[19] Strong cases can also be made for the other classic bias-crime categories: ethnicity, religion, and national origin. The very act of determining which groups will be included in a bias-crime law is legislative, and thus, at least partly, a social evaluation of social fissure lines.
Once a legislature has rationally concluded that bias-motivated violence can be and is intended by perpetrators to cause special harm to direct victims, target communities, or the community at large, it is justified in enacting a bias-crime law, identifying bias-motivated violence as a crime both different from the relevant parallel crime and deserving of greater punishment. It is no more necessary for the legislature to conclude that all bias crimes cause more serious harm than all parallel crimes than for the legislature to conclude that all instances of armed robbery cause more serious harm than all robberies committed without firearms. Armed robbery is a more serious crime than simple robbery and deserves greater punishment because of the rational legislative judgment that armed robbery could, and generally is intended to, cause a greater harm. A similar judgment warrants enhanced punishment of bias crimes.
Proponents of bias-crime laws have the best of intentions, but these laws, in the end, create thought crimes. As used here, "bias-crime law" refers to the common hate-crime statute (also commonly referred to as a "bump-up" statute) that enhances the penalty and/or grade of an already existing offense if the offense was motivated by bias.[21] The statute establishes one penalty for the underlying crime-assault or vandalism,[22] for instance-and another penalty for the defendant's bigotry that motivated the offense.[23]
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The legislatures enacting these statutes are targeting bigoted, hateful thought, and the special harms that crimes associated with those thoughts are, reasonably, said to cause. The government's decision to take bigotry seriously and express disapproval of it is commendable. The idea was that although the First Amendment prevents punishment of having or expressing bigoted thoughts,[24] there would be no problem punishing the thought if it were coupled with conduct, conduct that is itself already a crime.[25]
But that is precisely the problem with these statutes: they punish defendants once for what they have done, and once for having had a government-disapproved thought. Thought or opinion that is not punishable on its own does not become punishable when it accompanies criminal conduct. The accompanying criminal conduct does not work some special alchemy to change the reality that there is an additional penalty-sometimes as large or even much larger than the penalty for the base crime[26]-imposed solely for the bigoted thoughts.
These statutes are not only content-based, they are viewpoint-based. The statutes are even-handed in the sense that they punish bias regardless of whether it is, say, anti-black or anti-white. At the same time, however, they do take sides on a political and social issue: the extra punishment is imposed only for the bigoted viewpoint, not the anti-bigoted viewpoint. For example, if a racist threatens an African American by reason of the victim's race, the extra penalty applies, but if a non-racist onlooker then threatens the racist, there is no extra penalty.[27]
It is true that the legal system does upgrade and even define certain offenses on the basis of purpose and intent. Those are-like motive-mental processes, so if purpose and intent constitute a permissible basis for punishment, proponents argue, motive can as well. Yet the law has long distinguished between purpose and intent, which determine what the offender is doing, and motive, which explains only why the offender is doing it.[28] The children of a wealthy father may have a motive to kill him
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but no intent to do so; a psychopath may have no motive to kill but intend to do so anyway.[29] A purpose or intent is not an opinion on a social or political issue; bigotry (the motive for bias crimes), noxious though it may be, is. Intent and purpose are punishable only when coupled with conduct, not because they are protected by the First Amendment, but because they are inchoate. With the actual commission of an act, however, their inchoate quality disappears, and there is no bar to their punishment-that is, to punish intentional or purposeful conduct more harshly than conduct that is accidental. The same is not true of bigoted motive, because of the constitutional bar to punishing opinion, even when associated with unlawful conduct.
Many proponents of bias-crime laws are strong supporters of civil liberties. This has always been almost entirely a "liberal vs. liberal"[30] debate. Proponents-to their credit-care so deeply about the problems of bigotry and bigotry-related crimes that when what seemed like a simple solution was proposed, they were too eager to convince themselves that the First Amendment presented no bar. The undercurrent seems to be a feeling that bigotry is special, so abhorrent that it is fitting for the government to treat it as criminal in itself.[31]
People feel strongly that many other ideas are just as "wrong" and therefore deserving of special treatment. Occasionally, the Supreme Court agrees, and carves out a new category of so-called "unprotected" speech. But those cases are extremely rare, and fortunately so.[32] In any case, the Supreme Court has never created an unprotected class of speech-as it did for obscenity and fighting words-for bigotry.[33] Most likely, it is prevented from doing so by the First Amendment, just as it could not carve out exceptions for anti-American or blasphemous speech. In any event, until such time as the Supreme Court carves out such a class, if ever, government punishment of bigoted thoughts, even when accompanied by a crime, is constitutionally no different from government punishment of any other thought or opinion.
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Punishment of conduct, verbal or otherwise, for a bigoted viewpoint poses the identical problem. It is likely few proponents of bias-crime laws would think that a law increasing penalties for crimes committed "by reason of the offender's support of the war" or "by reason of anti-Ameri-canism" would be constitutional. And by this rationale, what would stop a state with a pro-choice majority from enhancing penalties for crimes committed "by reason of opposition to a woman's right to choose," while a neighboring state enhanced penalties for crimes committed "by reason of promotion of the taking of innocent human life"? Once a motive that represents an opinion or belief on any social or political belief can be criminalized, so can any of the above examples.
This is the point where reasonable people often wonder whether the costs of bias-crimes legislation are "worth it." That is, whether or not the laws are held to be constitutional, there is an indisputable cost to liberty inherent in any kind of punishment of opinion.[34] Perhaps, though, the effects of bias crimes are so damaging and far-reaching that a law successfully deterring them would be worth a small cost to liberty, particularly such an odious exercise of that liberty.
We need to ask first, however, is what worth it? We cannot decide if the cost is reasonable until we have identified the benefit. Strange as it seems, the need to measure or estimate the benefit before imposing the cost is frequently overlooked in the case of bias-crime laws, perhaps because we want so much for the hoped-for, gambled-on benefit from these laws to exist.
Unfortunately, in terms of deterrence, bias-crimes laws have been a failure. They appear to have made little difference in the incidence of bias crimes.[35] Admittedly, the direct impact of bias-crimes legislation is very
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difficult to measure with so many other factors (e.g., the overall drop in crime rates, the events of September 11, 2001)[36] affecting both the actual frequency of bias crimes and the reporting of bias crimes-both to and by the relevant authorities. Still, most of those factors are likely to affect the states equally, whether or not their legislatures had passed bias-crimes statutes, so if these laws had any deterrent effect, we would expect to see a difference between states in the number of bias crimes reported. That has not been the case.[37]
The Anti-Defamation League (ADL), a very early promoter of bias-crime laws, drafted in 1981 the "by reason of . . . " model bump-up statute that many jurisdictions adopted or adapted.[38] The ADL therefore had a strong interest in seeing and publicizing the success of these laws. For the first few years, it published an annual report with lists of states, showing what types of bias-crimes laws (mostly penalty bump-ups, statistics collection and reporting types) they had enacted, if any, and what their reported incidence of bias crimes had been.[39]
But when the numbers came in, there was no correlation between the existence of a bias-crime law and a drop in bias crimes.[40] Proponents, undaunted, found ways to explain the varying results in support of their position:
(1) Numbers are high where there is no bias-crime law: There is a grave need for this law![41]
(2) Numbers are low where there is no bias-crime law: There was under-reporting.[42]
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(3) Numbers are high where there is a bias-crime law: The existence of the law makes people feel safe to report bias crimes.[43]
(4) Numbers are low where there is a bias-crime law: Hurray! It worked! We told you so.[44]
But proponents could not explain all of these various results at the same time.
Next, something interesting happened: after a few years, the ADL stopped sending out these reports.[45] It seems reasonable to assume that the decision to stop publicizing these data was not because the laws were indeed creating the deterrent effect that supposedly justified them. That would have been trumpeted from the rooftops. Rather, it is difficult not to assume the opposite.[46] A recent ADL press release, published on its website, begins, "The number of anti-Semitic incidents remained at a consistent and disturbing level in 2003, according to newly released statistics from the Anti-Defamation League."[47]
So the question again arises: is what worth it? What is society getting in return for taking a bite-even assuming it is a Supreme Court-approved bite-out of First Amendment protection of thought and opinion? If nothing can be pointed to on that side of the balance, then the answer is clear: no, of course "it" is not worth it-there is no "it" there.
That would be true even if there were simply no measurable benefit, but at the same time, no cost (other than the cost to First Amendment protection). In fact, however, if we shy away from this question because we do not want to hear that the hoped-for decrease in bias crimes or any other improvements in society did not come to pass, there is a heavy cost to society in addition to the First Amendment infringement.
"Is what worth it?" is currently being asked (albeit not enough) in a challenge to another set of laws that, whether or not they will ultimately be upheld as constitutional, unquestionably carve into First Amendment
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and other constitutional protections: the USA Patriot Act.[48] The USA Patriot Act's defenders assert that, due to the threat of terrorism, the constitutional infringements are justified by necessity; they are "worth it."[49] Yet here, too, little is said to explain why and how. It seems that if the intrusions and denials of rights had averted any terrorist attacks, the Department of Justice would have been eager to publicize those successes, particularly as many of the Act's provisions are currently under constitutional challenge.[50] But they have not done so, sometimes vaguely alluding to security concerns as the reason for failures to report successes.[51] It is hard to believe, however, that there has not been a single success story the report of which would not endanger the nation. It is even harder to believe that the Administration's choice not to report any successes is due to diffidence.
It is impossible to prove that willingness to sacrifice a bit of First Amendment protection for bias-crime laws "because bigotry is so important" paved the way for sacrifices of other constitutional provisions for the Patriot Act, "because terrorism is so important." But it is equally impossible to prove that it did not. Certainly Mitchell v. Wisconsin[52] created a precedent that can be used to defend the Patriot Act against constitutional challenge. There really are slippery slopes in the world, and we do slide down them occasionally.[53] And when we do, it is always with the best of intentions, always in the belief that the circumstances constitute a crisis, a special case. Senator McCarthy's followers sincerely thought they needed to save the world from the calamity of Communism.[54]
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Deterrence is not the only justification for a criminal statute. Retribution is another.[55] If it could be proven that there is a greater harm caused when a given offense is bias-motivated than when the same offense is committed without bias, could the government constitutionally punish the bias-motivated offender more heavily?
It is quite an assumption that one could adequately prove that bias crimes always (or even likely) cause greater harm than crimes motivated by other motives such as greed, personal hatred, and political terrorism. It does not seem impossible, however, and the notion feels right intuitively, so let us assume that they do. In that case, it seems both logical and permissible to punish bias crimes more heavily, the same way that the Constitution permits more severe punishment of an assault that causes serious physical harm than one that does not.[56]
There is a problem with that analogy, though, and it makes all the difference. Unlike the serious versus the minor physical assault, the greater harm caused by a hate-motivated crime is solely the effect of the offender's beliefs and/or expression of belief.[57] In a case such as this, the extra harm is caused solely by the part of the offender's conduct that is pure First Amendment activity. Thinking, believing, even hating, is simply not something government can punish.
Most often, opponents of bias-crime legislation not only often concede, but affirmatively agree that hateful ideas and their expression cause real harm. In fact, the expression of hateful ideas causes harm whether it is accompanied by criminal conduct, non-criminal conduct, or no conduct at all. Sometimes that extra harm amounts to offense, which, even in the case of deeply painful offense, is not punishable under the Constitution.[58] Other times, though, the harm is more than offense: "terror" might be the best word for that harm (in the sense of great fear, rather than connection to political terrorism). But that same fear also arises without an accompanying criminal act. For example, how might you feel upon seeing someone merely reading a copy of Mein Kampf or a Ku Klux Klan newsletter? Surely, though, the proponents of bias-crime laws do not approve banning reading or writing, let alone believing, hateful messages, despite the harm the ideas and their expression do cause. The First Amendment forbids punishing the expression of thought, even hateful and harm-
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ful thought. That restriction on government power does not evaporate magically when the expression of hateful thought is accompanied by some punishable conduct.
What is left then but a symbolic effect? Bias-crimes laws arguably (although not demonstrably) make it slightly less politically correct to express bigotry. Even assuming there is any such shaming effect on anyone who would commit a bias crime, there are far more effective ways than criminalizing bigotry through bias-crime laws to accomplish this, either through government action or, better, socially.[59] Certainly a criminal statute that does not infringe on First Amendment rights would make this symbolic statement at least as well. The criminal code is too clumsy a tool for social change generally, let alone such an easy, cheap, and politically popular quick-fix as passing bias-crime laws.[60] It is worse when a statute is merely a symbolic gesture from the legislature that is then used as a cover for avoiding more difficult, and probably more expensive, action toward true equality. As James Jacobs and Kimberly Potter explained, "[H]ate crime laws may substitute for true 'institution building' in the area of community relations. Effectively, politicians may be getting off the hook too easily. Throwing laws at a problem costs no money and requires no political energy."[61]
The effects of bigotry and bigoted expression are certainly more than offensive. Still, we should not whack at the First Amendment, even a little bit, for the sake of letting government officials pose for the cameras as they "make a tough statement about hate and violence in our communities"-and then go home.
This Part begins with some basic points of agreement. Along the way, we will touch on several areas of disagreement. Overall, however, there is sufficient common ground to proceed to the Model Statute set out in Part V.
The criminal justice system is an awkward and blunt tool for making social policy, yet unavoidably, it deals with issues of social policy. Bias-crime laws are not a solution to the overall problem of discrimination in society. At best, bias-crime laws will address only a small aspect of the problem. Focusing too narrowly on bias crimes misses the heart of the
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problem by overlooking the true breadth and depth of bigotry in society. Bigotry and intra-group animus is a serious and multi-tiered social illness, and it would be facile in the extreme to expect bias-crime laws to cure this condition completely or even to address all of its aspects. Some commentators have warned that bias-crime laws will keep us from seeing the full dimensions of racism and other forms of bigotry, and may distract us from non-criminal cures such as civil anti-discrimination laws and education programs.[62] Criminal law enforcement cannot address all aspects of any social pathology and should not be looked to for that purpose. Bias-crime law is no exception.
If a legislature could demonstrate greater harm caused when an assault is motivated by bias than when it is not, it would be appropriate for that legislature to select those crimes for enhanced punishment. There are two caveats to this general proposition, however.
First, as developed further in Point of Agreement C below,[63] while expression cannot constitutionally be punished, the extent to which bias-crime regimes may implicate punishment of expression, if they do so at all, is subject to debate. That is, while we agree that harm caused by expression alone cannot be considered in the measurement of aggregate harm, we disagree as to how significant an obstacle this fact presents to the enterprise of punishing bias-motivated crimes. Gellman believes that the additional harm associated with bias crimes, while real, stems solely from the offender's bias motive, which is pure First Amendment activity.[64] Lawrence believes that the additional harm stems from criminal behavior made more serious and more dangerous by the attending intent and motivation behind the behavior.[65] Although this disagreement does not prevent us from reaching the agreement expressed in the Model Statute in Part V, the disagreement is significant and we do not minimize it in this project.
Second, this point of agreement is stated in the conditional form: that is, if a legislature can show greater harm, then there is a case for enhanced
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punishment.[66] Lawrence may be more inclined to believe that harm can be demonstrated and indeed has been demonstrated by social psychologists and sociologists.[67] But both authors agree that a penalty enhancement bias-crime statute requires that the case for greater harm be supported adequately by legislative findings. The case has not yet been adequately established, but we agree it is likely that special harms caused by bias-motivated crimes exist.
With those caveats in mind, it is worthwhile developing this point of agreement with respect to the role of harm in assessing punishment. The severity of a crime is a function of both the culpability of the actor and the harm caused.[68] Much has been said about the role of culpability in the assessment of the seriousness of a crime.[69] The entire thrust of the study and articulation of modern criminal law has been toward a focus on the state of mind or culpability of the accused. This focus does not mean that the results of the conduct are unimportant. Rather, punishment under the criminal law, whether based on a retributive or consequentialist argument, has been critically linked to the actor's mental state.[70]
In contrast to the doctrinally and theoretically well-developed understanding of the relationship between culpability and the level of punishment, the role of harm in determining the level of punishment has been largely unexplored. This discrepancy is surprising, because the intuitive case for harm as a key component in assessing a crime's seriousness is at least as strong as that for culpability. Holding either culpability or harm constant while varying the other demonstrates this point. The objective harm of a victim's death will be associated with the more serious crime of murder or the less serious crime of manslaughter solely on the basis of the actor's culpability.[71] Intentional murder, however, is a more serious crime than intentional assault because of the greater harm caused. Although the offender acts willfully in both instances, the murder victim is dead whereas the assault victim is only injured. The same point may be illustrated further down the homicide scale. Reckless conduct resulting in
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death most often constitutes the felony of manslaughter.[72] If identical conduct with identical culpability does not result in death, however, the actor is typically guilty of a far lesser crime, often only a misdemeanor such as the Model Penal Code's "reckless endangerment."[73]
One further point should be made with respect to the relationship between culpability and harm and their roles in understanding the severity of a crime. Not only do both the actor's culpability and the harm caused by the actor's conduct play separate roles in comprising the severity of the crime, there is a mutual, interactive relationship between these two factors. An actor's culpability itself sometimes affects the level of harm caused. Consider the distinction between an intentional assault with a baseball bat and an unintended, and perhaps even non-negligent, accident in the midst of a baseball game; assume that the physical injury in the two cases is identical. It is not only true that there is a difference in culpability, as the actor in the first case acted intentionally whereas the actor in the second case at worst acted negligently.
It is also true that the very harm to the two injured parties is different. Although the physical harm is the same, the emotional and psychological harm to the assault victim is likely to be far greater than that caused to the unfortunate baseball catcher who was hit in the head with a bat. The catcher may be somewhat more wary or careful in the next game, but the catcher will not exhibit the victimological pattern of someone who was intentionally attacked with a bat. This will not always be the case. For example, a person injured in a fight with an acquaintance may be less traumatized than one receiving an identical injury at the hands of a deranged stranger attacking random victims. The point remains, however, that the full impact of a crime against the person is both physical and psychological, and the latter will be affected by the culpability of the perpetrator of the crime.
Both authors agree that harm matters in the assessment of the severity of a crime, that harm itself may be a function in part of the perpetrator's culpability, and furthermore, that harm is highly relevant in the determination of the appropriate measurement of a crime. A legislature might rationally conclude that bias-motivated crimes cause a greater level of harm to the individual direct victim and the victim community than an otherwise similar but non-bias motivated crime. Whether this greater harm should be taken into account in assessing criminal punishment is a more contentious question, to which the discussion now turns.
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We believe that thought and expression may not be punished, but that criminal intents and effects may. The line between the two, however, is not always easy to draw.
One of the classic criticisms of bias-crime laws is that they punish bigots for holding bigoted ideas, and punish speakers for expressing racist ideas or ideas that are perceived by the listener to be racist. Gellman was one of the very early critics to articulate this argument.[74] Other scholars expressed similar views, particularly where campus speech codes were concerned.[75] Even here, however, there was early common ground. Lawrence, in an argument for the enhanced punishment of bias crimes, nonetheless advocated against the criminalization of racist speech, asserting that the expressive behavior of racist speech could be distinguished from the mens rea-based criminal behavior of a bias crime.[76]
We agree, therefore, that racist speech is protected speech. The First Amendment protects behavior that has as its prime motivation the intent to communicate or express a view.[77] That the view is one of bigotry or asserted racial superiority is of no matter.[78] Moreover, that the expression of such views may in some instances cause offense is of no matter.[79] Expression of views that are severely disturbing to others cannot be criminalized constitutionally.[80] Only where behavior is accompanied by culpability, that is, intent to do harm, or mens rea, does the behavior cross the line into that which may be constitutionally proscribed.[81] In principle, therefore, we agree that bigoted speech must be protected and that bias-motivated crimes may be punished. Our points of disagreement arise from the application of these shared principles in the context of bias-crime law enforcement.
The areas of agreement and disagreement are well illustrated through discussion of the Supreme Court's decision in Virginia v. Black,[82] evaluating Virginia's half-century old cross-burning statute. That statute provided in pertinent part:
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It shall be unlawful for any person or persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place. Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons.[83]
Black arose out of two separate cases involving three defendants. Like textbook examples, the two cases represent the two poles of cross burnings, expression of White supremacy and domestic terrorism.[84] Barry Black led a Ku Klux Klan rally on private property, at the conclusion of which a twenty-five to thirty-foot cross was burned. At his trial, the jurors were instructed that to find Black guilty, they were required to find an "intent to intimidate"[85] and that "the burning of a cross by itself is suffi-cient evidence from which you may infer the required intent."[86] The cross burning for which Richard Elliott and Jonathan O'Mara were prosecuted was quite different. They attempted to burn a cross on the lawn of an African American, James Jubilee, who had recently moved next door, to "get back" at Jubilee.[87] At trial, the judge originally ruled that the jurors, like those in the Black trial, could infer the requisite intent for the crime of cross burning from the act of burning the cross itself.[88] The final instruction given to the jury, however, required the Commonwealth to prove that "the defendant had the intent of intimidating any person or group of persons."[89]
All three defendants appealed to the Supreme Court of Virginia.[90] That court struck down the cross-burning statute, relying heavily on R.A.V. v. City of St. Paul,[91]the 1992 case in which the Court struck down a cross-burning ordinance as a content-related proscription in violation of the First Amendment.[92] The United States Supreme Court granted certiorari on two related issues: whether the cross-burning statute violated the First Amendment as interpreted in R.A.V. (the R.A.V. issue), and whether the statutory presumption that cross burning itself is prima facie evidence of the defendant's intent to intimidate was unconstitutionally overly broad (the overbreadth issue).[93] In an opinion by Justice O'Connor, a majority of the
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Court upheld the statute on the R.A.V. issue. Although there was no majority opinion on the overbreadth issue, a majority of the Court was of the view that the statutory presumption was constitutionally invalid.[94]
A blueprint for a constitutional cross-burning statute emerges from a consideration of the Court's treatment of the two issues, and with it, a clarification of points of both disagreement and agreement between us. The R.A.V. issue concerned the holding in that case that the St. Paul cross-burning ordinance was an unconstitutional content-based prohibition, proscribing only that conduct that would cause "anger, alarm or resentment in others on the basis of race, color, creed, religion or gender"[95] and not on any other basis. The Court in Black upheld the Virginia statute as a law aimed at all cross burnings that are intended to intimidate, regardless of the race or ethnicity of the victim.[96] The overbreadth issue concerned the prima facie evidence clause[97] of the cross-burning statute. Intimidation would have to be proved, not presumed, unless the presumption of intimidation is so easily rebutted that a statute would as a practical matter require the State to prove that the defendant intended to intimidate the victim.[98] Having disagreed on the correctness of the holding in R.A.V., we may also disagree as to the correctness of the Court's refinement of that case in Black, but the area of disagreement is narrowing. Whereas Lawrence agrees generally with the approach adopted by the Court in Black, Gellman would challenge even a law aimed at all cross burnings, preferring a law aimed at vandalism, threats, harassment, and intimidation, however achieved.
Thus, while the authors agree that Virginia may not constitutionally punish Barry Black and further agree that Virginia may constitutionally punish Richard Elliott and Jonathan O'Mara, Lawrence would permit Virginia to prosecute Elliott and O'Mara for a bias-motivated crime of cross-burning, whereas Gellman would resist this focus on the racial bias-element of the crime. As discussed above, Gellman objects to so much of bias-crime laws as assigns enhanced punishment based solely on the offender's thoughts to conduct that is already a crime.[99] Citing the distinction between "motive" and "intent," Gellman would allow for the punishment of Elliott and O'Mara only because they intended to vandalize property, and threaten and terrify James Jubilee. Lawrence questions a strict distinction between motive and intent, and would permit the punishment of Elliot and O'Mara not only for intending to terrorize Jubilee, but also
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for doing so with a further intent (motivation) to terrorize him because of his race and to cause fear and harm to other African Americans, assuming this intent could be proven.[100]
The authors do not intend to paper over this significant area of disagreement. However, there is a significant point of agreement to be stressed: both authors would permit the punishment of Elliot and O'Mara not only for intending to terrorize Jubilee but also for doing so with a further intent to cause fear and harm to other African Americans. This point of agreement, along with the substantial areas of agreement outlined above, permits progress on the type of joint model legislation explored in Part V below.
Bias-crime legislation must be more than merely a symbolic expression of legislative recognition of a problem to be a proper exercise of the legislative function. It is therefore appropriate to ask what the measurable goals of a bias-crime law are, to then determine whether or not the law is working to achieve those goals.
To a certain extent, the question whether any criminal law is effective turns on the underlying justification for criminal punishment upon which one relies. A consequentialist will presumably articulate a goal of crime reduction, and will accordingly attempt to measure bias-crime levels after the enactment and implementation of a bias-crime law. A retributivist will ask a different set of more overtly normative questions about whether bias criminals deserve greater punishment than those who commit parallel crimes.
The authors agree, although not for precisely the same reasons, that consequentialist justifications for bias-crime laws are problematic. When it comes to bias crimes, incidence data are seriously flawed. Data compiled by local law enforcement agencies both for their own purposes and for reporting to the Department of Justice pursuant to the federal Hate Crimes Statistics Act[101] suffer from dramatic underreporting, for which there are systemic reasons.[102] At the same time, the reporting of bias crimes may increase as the problem of bias-motivated violence is better understood, with the numbers measuring less the level of the problem than the level of our awareness of the problem. Gellman argues above
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that regardless of the statistics, supporters can and do argue that bias-crime law was effective, but Lawrence would contend, and Gellman concedes, that opponents can and do similarly make an argument that bias-crime law was not effective, whatever the data appear to indicate. Lawrence in turn concedes that the data that do exist have not demonstrated an effective deterrent effect of bias-crime laws.
The authors agree, although Gellman somewhat reluctantly, that the best answer to the question of how we will know if bias-crime laws are working is to be found in the recognition that, at least for now, we enact criminal laws not only to reduce crime, but also to punish criminal wrongs, and that this punishment may or may not lead to a reduction in crime at any given time. Bias crimes may thus be better understood from the perspective of a harms-based retributive punishment theory. So understood, the justification for bias-crime laws does not require a largely futile effort to determine whether at any particular time levels of bias crimes are rising or falling, or whether we are merely becoming more adept at measuring what, undoubtedly for some time yet to come, will be very hard to measure.
The Model Statute that is presented in this Part is perhaps better thought of as a work in progress, and not as a formal model. The following draft legislation and explanatory notes outline the structure of a Model Statute along the lines of agreement developed above. Where the authors have not yet reached agreement, the issue is flagged and discussed in the explanatory notes.
A. The penalty for any criminal offense may, at the discretion of the court, be increased by no more than the lesser of [number of years] or [fraction of the penalty applicable to base offense], where any of the following applies and has been proven beyond a reasonable doubt:
(1) the offender acted with the purpose to create terror in a definable community,
(2) the offender acted with the knowledge that he was likely to create a perception of a threat, to the victim or to others, of commission of further crime, by himself or others, against members of a definable community,
(3) the offender acted with the purpose to inflict or with the knowledge that he was likely to inflict serious emotional distress on the victim due to the victim's membership in or relationship to a defin-able community, or
(4) The offender acted with intent to interfere with another's
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a. exercise of constitutional or statutory rights, or
b. enjoyment of or access to public facilities, or
c. enjoyment of or access to equal opportunity
based on the offender's belief as to the victim's membership in or relationship to a definable community.
B. For the purposes of this section,
(1) "terror" means fear of immediate or future serious harm where the victim or others experience that fear because of the victim's real or perceived membership in or relationship to a definable community;
(2) "definable community" includes, but is not limited to, any group defined by, identified by, or having in common race, color, national origin, religion, ethnicity, sexual orientation, or sex.
(a) The statute is directed toward the additional harm that bias crimes cause beyond that caused by the base offense without the bias element, rather than toward the offender's motive. In this way, the statute avoids the First Amendment prohibition against imposing additional penalties for the offender's beliefs and/or expression, while recognizing and punishing the additional harm.
(b) Some categories of groups perceived by the legislature to be frequent targets of bias crimes, such as groups defined by race or sexual orientation, are named in the statute. Limiting the categories to a finite list, however, may create a First Amendment problem of a content- and viewpoint-based list of government-disapproved biases that may be punished, while others are not. Gellman believes that it does; Lawrence does not. To avoid this potential problem, the statute is not limited to whatever categories (if any) a legislature chooses to list as prima facie examples, and the State is free to make the case that another category fits the definition of "definable community" in Subparagraph B(2). As the requisite culpability under the statute is either purpose or knowledge, the State would also need to demonstrate that the offender had a level of conscious awareness of or belief as to the victim's membership in or relationship to the putative "definable community."
For example, if an offender targets a doctor who performs abortions, the State should be able to show that "abortion providers" are a definable community within the meaning of the statute, because the attack against this victim was intended to create terror (within the meaning of subparagraph B(1)) among other abortion providers, to create the threat of further crime against other abortion providers, and to interfere with the exercise of constitutional rights. Although it is possible not to list any categories as examples, inclusion of markers such as sex and sexual orientation is
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useful because it underscores that "community" is not limited to geographic neighborhoods or membership organizations.
(c) The statute does not require that the offender actually be wholly or primarily motivated by the victim's group membership, where the circumstances are such that the offender intends or knows that the victim or others will nevertheless suffer the same harm as if he were. For example, if an offender, motivated by some wholly unrelated reason, chooses to harass the victim through the use of symbols or language that are identified with bigoted threats, because the offender knows that the symbols or language will create an additional threat of serious harm to the victim or others, then parts of the statute will apply. On the other hand, if the offender does indeed harbor bigotry toward the victim, but nothing in the commission of the offense was intended to or would be likely to cause terror or threat to the victim or others based upon anyone's identity, then the additional harm addressed by the statute does not exist, and the statute does not apply.
(d) The statute does not require in all its parts that the victim actually be, or be perceived by the offender to be, a member of the definable community in question. The inclusion of victims who have a "relationship to a definable community" extends the statute to offenses committed against, for example, a white person married to an African American, a heterosexual supporting same-sex marriage, and a white civil rights activist.
(e) The range of the additional penalty is left blank. It will depend upon whether all offenses, or only selected offenses, are subject to the statute. In no case should the additional penalty be greater than the penalty for the base offense; preferably, it should be substantially lower. The court is empowered to refrain from imposing any additional penalty where circumstances so dictate.
Neither author is fully satisfied with the Model Statute that is presented above, nor is either under the illusion that any Model Statute will solve the problem of racial or ethnic violence in this or any society. It is, however, a start. Moreover, for too long, the commentators for and against bias-crime laws have largely argued past one another. We have endeavored to try something different. While we have not reached full agreement, we have moved in that direction, and where an issue as significant and serious as the one under consideration in this Essay is concerned, that itself is, we think, highly worthwhile. We hope our efforts to engage in this exercise will encourage others to undertake this challenge as well.
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An actor is typically guilty of a far lesser crime, often only a misdemeanor such as the Model Penal Code's "reckless endangerment," if there are identical levels of culpability and conduct with different resulting harms. The Model Penal Code characterizes reckless risk of death as a misdemeanor. Twenty-one states follow this approach. Compare Ala. Code § 13A-6-24(b) (1995) (classifying reckless endangerment a class A misdemeanor) with Ala. Code § 13A-6-3(b) (1995) (classifying manslaughter a class B felony); Alaska Stat. § 11.41.250(b) (1989) (classifying reckless endangerment a class A misdemeanor) with Alaska Stat. § 11.41.120(b) (1993) (classifying manslaughter a class A felony); Ariz. Rev. Stat. Ann. § 13-1201(b) (West 2001) (classifying reckless endangerment a class 1 misdemeanor or, if there was a substantial risk of imminent death, a class 6 felony) with Ariz. Rev. Stat. Ann. § 13-1103(b) (West 2001) (classifying manslaughter a class 2 felony); Colo. Rev. Stat. Ann. § 18-3-208(b) (West 1999) (classifying reckless endangerment a class 3 misdemeanor) with Colo. Rev. Stat. Ann. § 18-3-104(2) (West 1999) (classifying manslaughter a class 4 felony); Conn. Gen. Stat. § 53a-63(b) (1985) (classifying reckless endangerment class A misdemeanor) with Conn. Gen. Stat. § 53a-55 (1993) (classifying first-degree manslaughter a class B felony); Fla. Stat. Ann. § 784.05(1) (West 2000) (classifying culpable negligence a second-degree misdemeanor) with Fla. Stat. Ann. § 782.07(1) (West 2000) (classifying manslaughter a second-degree felony); 720 Ill. Comp. Stat. 5/12-5(b) (2002) (classifying reckless conduct a class A misdemeanor) with 720 Ill. Comp. Stat. 5/9-3(d)(1) (2002) (classifying involuntary manslaughter a class 3 felony); Ind. Code Ann. § 35-42-2-2(b) (Michie 1998) (classifying criminal recklessness a class B misdemeanor) with Ind. Code Ann. § 35-42-1-5 (Michie 1998) (classifying reckless homicide a class C felony); La. Rev. Stat. Ann. §§ 14:2(6), 14:39 (West 1997) (classifying negligent injuring a misdemeanor) with La. Rev. Stat. Ann. §§ 14:1(4), 14:32(C) (West 1997) (classifying negligent homicide a felony); Me. Rev. Stat. tit. 17-A, §§ 211(2), 1252(2)(D) (West 1983) (classifying reckless conduct a class D crime) with Me. Rev. Stat. Ann. tit. 17-A, §§ 203(1)(A), 1252(2)(A) (West 1983) (classifying manslaughter a class A crime); Md. Code Ann., Criminal Law § 3-204(b) (2002) (classifying reckless endangerment a misdemeanor) with Md. Code Ann., Criminal Law § 2-207 (2002) (classifying manslaughter a felony); Neb. Rev. Stat. Ann. §§ 28-309(2), -310(2) (Michie 2003) (classifying recklessly causing injury a class I misdemeanor or, if the injury is serious, a class IIIA felony) with Neb. Rev. Stat. Ann. § 28-305(2) (Michie 2003) (classifying first-degree manslaughter a class III felony); N.D. Cent. Code § 12.1-17-03 (2003) (classifying reckless endangerment a class A misdemeanor or, if circum-
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stances manifested extreme indifference to the value of human life, a class C felony) with N.D. Cent. Code § 12.1-16-02 (2003) (classifying manslaughter a class B felony); Ohio Rev. Code Ann. § 1903.13(B)-(C) (West 1997) (labeling reckless conduct resulting in physical harm as assault and making it a first-degree misdemeanor) with Ohio Rev. Code Ann. § 2903.041(b) (West 1997) (classifying manslaughter a third-degree felony); Or. Rev. Stat. § 163.195(2) (2001) (classifying reckless endangerment a class A misdemeanor) with Or. Rev. Stat. § 163.125(2) (2001) (classifying second-degree manslaughter a class B felony); S.D. Codified Laws § 22-18-1(2) (Michie 1998) (classifying recklessly causing of bodily injury to another a class 1 misdemeanor) with S.D. Codified Laws § 22-16-20 (Michie 1998) (classifying manslaughter a class 4 felony); Tex. Penal Code Ann. § 22.01(a)(1), (b) (Vernon 1994) (defining recklessly causing bodily injury as assault and making it a class A misdemeanor) with Tex. Penal Code Ann. § 19.04(b) (Vernon 1994) (classifying manslaughter a second-degree felony; Utah Code Ann. § 76-5-112(2) (2003) (classifying reckless endangerment a class A misdemeanor) with Utah Code Ann. § 76-5-205(2) (2003) (classifying manslaughter a second-degree felony); Vt. Stat. Ann. tit. 13, § 1025 (1974) (classifying reckless endangerment a misdemeanor) with Vt. Stat. Ann. tit. 13, § 2304 (1974) (classifying manslaughter a felony); Wash. Rev. Code § 9A.36. 050(2) (2000) (classifying reckless endangerment a misdemeanor) with Wash. Rev. Code § 9A.32.060(2) (2000) (classifying first-degree manslaughter a class A felony); Wyo. Stat. Ann. § 6-2-504(c) (Michie 2003) (classifying reckless endangerment a misdemeanor) with Wyo. Stat. Ann. § 6-2-105(b) (Michie 2003) (classifying manslaughter a felony).
Five states grade reckless endangerment as a felony, but in the majority of these jurisdictions it is not graded as severely as manslaughter. Compare Del. Code Ann. tit. 11, § 604 (2001) (classifying first-degree reckless endangerment a class E felony) with Del. Code Ann. tit. 11, § 632 (2001) (classifying manslaughter a class B felony); Haw. Rev. Stat. Ann. § 707-713(2) (Michie 2003) (classifying first-degree reckless endangerment a class C felony) with Haw. Rev. Stat. Ann. § 707-702(3) (Michie 2003) (classifying manslaughter a class A felony); Mont. Code Ann. §§ 45-5-207(2), -208(2) (2003) (classifying criminal endangerment a felony punishable by imprisonment for not more than ten years) with Mont. Code Ann. § 45-5-104(3) (2003) (classifying negligent homicide a felony punishable by imprisonment for not more than 20 years); N.Y. Penal Law § 120.25 (McKinney 1987) (classifying first degree reckless endangerment a class D felony) with N.Y. Penal Law § 125.20 (McKinney 1994) (classifying first degree manslaughter a class B felony); Wis. Stat. § 941.30 (1991-92) (classifying first degree reckless endangerment a class F felony) with Wis. Stat. § 940.06 (1991-92) (classifying manslaughter a class D felony).
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In one state, both reckless endangerment and manslaughter caused by reckless conduct constitute misdemeanors, with the former offense still graded less severely than the latter. Compare 18 Pa. Cons. Stat. § 2705 (2000) (establishing recklessly endangering another person as a second-degree misdemeanor) with 18 Pa. Cons. Stat. § 2504 (2000) (classifying involuntary manslaughter a first-degree misdemeanor except when the victim is under the age of twelve and in the defendant's care).
In three states, reckless endangerment and manslaughter carry the same offense grade. Compare Ark. Code Ann. § 5-13-205 (Michie 1993) (classifying reckless conduct creating a substantial risk of death or serious injury as first-degree assault and making it a class A misdemeanor) with Ark. Code Ann. § 5-10-105 (Michie 1993) (classifying negligent homicide a class A misdemeanor if the negligence was not the result of operating a vehicle while intoxicated); Ga. Code Ann. § 16-5-60(b) (2003) (classifying reckless conduct a misdemeanor) with Ga. Code Ann. § 16-5-3(b) (2003) (classifying involuntary manslaughter a misdemeanor if the reckless act was otherwise lawful); Ky. Rev. Stat. Ann. § 507.060 (Michie 1999) (classifying first-degree wanton endangerment a class D felony) with Ky. Rev. Stat. Ann. § 507.050(2) (Michie 1999) (classifying reckless homicide a class D felony).
There are also six states in which reckless endangerment may or may not carry the same grade as manslaughter, depending on the level of harm and culpability involved in each offense. Compare Kan. Stat. Ann. §§ 21-3412, -3414 (1995) (prohibiting the reckless causing of injury under battery statutes and making it a severity level 5 person felony, a severity level 8 person felony, or a class B person misdemeanor depending on the level of injury and whether a weapon was used) with Kan. Stat. Ann. § 21-3404 (1995) (classifying involuntary manslaughter a severity level 5 person felony); Miss. Code Ann. § 97-3-7(1)-(2) (1994) (classifying the reckless causing of bodily injury as assault and making it a crime punishable by a jail term of up to six months, but allowing sentence extensions of up to thirty years if the circumstances manifested extreme indifference to the value of human life or the victim is employed in certain government positions) with Miss. Code Ann. §§ 1-3-11, 97-3-25 (1994) (classifying manslaughter a felony punishable by imprisonment for up to twenty years); Mo. Rev. Stat. §§ 565-060-070 (2000) (classifying reckless conduct resulting in injury as third-degree assault and making it a class A misdemeanor or, if the injury was serious, labeling it second-degree assault and making it a class C felony) with Mo. Rev. Stat. § 565.024(2) (2000) (classifying first-degree involuntary manslaughter a class C felony and second-degree involuntary manslaughter a class D felony); N.H. Rev. Stat. Ann. § 631:3 (1996) (classifying reckless endangerment a misdemeanor if committed without a weapon and a class B felony if committed with a weapon) with N.H. Rev. Stat. Ann. § 630:3 (1996) (classifying negligent homicide a class B felony or, if the injury
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was caused by operating a vehicle while intoxicated, a class A felony); N.J. Stat. Ann. 2C:12-1 (West 1995) (classifying an attempt to recklessly cause injury as assault and making it a disorderly persons offense or, if circumstances manifested extreme indifference to the value of human life, a crime of the second degree) with N.J. Stat. Ann. 2C:11-4(b)-(c) (West 1995) (classifying recklessly causing a death a crime of the second degree or, if circumstances manifested extreme indifference to the value of human life, a crime of the first degree); Tenn. Code Ann. § 39-13-103(b) (2003) (classifying reckless endangerment a class A misdemeanor if committed without a weapon and a class E felony if committed with a weapon) with Tenn. Code Ann. § 39-13-212(b) (2003) (classifying criminally negligent homicide a class E felony).
Finally, fourteen states do not have a statute that covers reckless conduct generally but instead punish reckless conduct only in certain contexts, such as driving and handling firearms. Compare Cal. Veh. Code § 23103 (West 2000) (making reckless driving a misdemeanor) with Cal. Penal Code §§ 17(a), 193 (West 2000) (classifying involuntary manslaughter a felony); Idaho Code §§ 18-111, 18-3312, 49-1401 (Michie 1997) (classifying reckless driving and reckless use of a firearm resulting in injury misdemeanors) with Idaho Code § 18-4007 (Michie 1997) (classifying involuntary manslaughter a felony); Iowa Code §§ 321.277, 712.5, 724.30 (2001) (classifying reckless driving a simple misdemeanor, reckless use of explosives a serious misdemeanor, and reckless use of firearms a class C or D felony) with Iowa Code § 707.5 (2001) (classifying involuntary manslaughter an aggravated misdemeanor or, if the act was illegal, a class D felony); Mass. Gen. Laws ch. 90, § 24(2)(a) and ch. 274, § 1 (1998) (classifying reckless driving a misdemeanor) with Mass. Gen. Laws ch. 265, § 13 (1998) (classifying manslaughter a felony); Mich. Comp. Laws §§ 257.626, 750.8, 752.861 (2003) (classifying reckless driving and reckless use of firearms misdemeanors) with Mich. Comp. Laws §§ 750.321, 750.324 (2003) (classifying manslaughter a felony and negligent vehicular homicide a misdemeanor); Minn. Stat. §§ 169.13, 609.66 (2002) (classifying reckless driving and reckless handling of dangerous weapons misdemeanors) with Minn. Stat. §§ 609.02(2), 609.205 (2002) (classifying second-degree manslaughter a felony); Nev. Rev. Stat. § 484.377 (2003) (classifying reckless driving a category B felony, but only if it causes either death or serious bodily injury) with Nev. Rev. Stat. § 200.090 (2003) (classifying involuntary manslaughter a category D felony); N.M. Stat. Ann. §§ 30-1-6, 66-8-113 (Michie 2003) (classifying reckless driving a petty misdemeanor) with N.M. Stat. Ann. § 30-2-3(B) (classifying involuntary manslaughter a fourth-degree felony); N.C. Gen. Stat. § 20-140 (2003) (classifying reckless driving a class 2 misdemeanor) with N.C. Gen. Stat. § 14-18 (classifying involuntary manslaughter a class F felony); Okla. Stat. tit. 47, § 11-901 and tit. 21, §§ 5-6 (2001) (classifying reckless driving a misdemeanor) with Okla. Stat.
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tit. 21, §§ 716, 722 (classifying second-degree manslaughter a felony); R.I Gen. Laws §§ 11-1-2, 31-27, 1.1 (2002) (classifying reckless driving so as to endanger a felony punishable by imprisonment for no more than five years) with R.I. Gen. Laws § 31-27-1 (2002) (classifying reckless driving resulting in death a felony punishable by imprisonment for no more than thirty years); S.C. Code Ann. §§ 16-1-10, 56-5-2920 (Law. Co-op. 1991) (classifying reckless driving a misdemeanor) with S.C. Code Ann. § 16-3-60 (Law. Co-op. 2003) (classifying involuntary manslaughter a felony); Va. Code Ann. §§ 18.2-51.3(B), -51.6(A) (Michie 1996) (classifying reckless endangerment a class 6 felony when it involves driving while intoxicated and the reckless handling of firearms a class 1 misdemeanor) with Va. Code Ann. § 18.2-36 (Michie 1996) (classifying manslaughter a class 5 felony); W. Va. Code Ann. §§ 17C-5-3, 6-11-1 (Michie 2000) (classifying reckless driving a misdemeanor punishable by imprisonment of no more than ninety days on a first offense) with W. Va. Code Ann. § 61-2-5 (Michie 2000) (establishing involuntary manslaughter as a misdemeanor punishable by imprisonment for not more than one year).
[*] Of Counsel, Wolman & Genshaft,
Columbus, Ohio; A.B., Brandeis University, 1978; M.S.S.W., Columbia University, 1980; J.D.,
Ohio State University, 1986.
[**] Law Alumni Scholar and Professor of Law, Boston
University School of Law; B.A., Williams College, 1977; J.D., Yale Law School, 1980. Thanks
are due to Lisa Thompson for her research and editorial assistance.
[1] See, e.g.,Susan Gellman,
"Brother, You Can't Go to Jail for What You're Thinking": Motives,
Effects, and "Hate Crime" Laws, 11 Crim. Just. Ethics 24 (1992); Susan
Gellman, Hate Crime Laws Are Thought Crime Laws, 1992/1993 Ann. Surv. Am. L. 509;
Susan Gellman, Hate Crime Laws After Wisconsin v. Mitchell, 21 Ohio N.U. L. Rev. 863
(1995); Susan Gellman, Hate Speech and a New View of the First Amendment, 24 Cap. U.
L. Rev. 309 (1995); Susan Gellman, Sticks and Stones Can Put You in Jail, But Can Words
Increase Your Sentence? Constitutional and Policy Dilemmas of Ethnic Intimidation
Laws, 39 UCLA L. Rev. 333 (1991) [hereinafter Sticks and Stones].
[2] See, e.g., Frederick M. Lawrence, Punishing
Hate: Bias Crimes Under American Law (1999) [hereinafter Punishing Hate]; Frederick M.
Lawrence, Enforcing Bias Crime Laws Without Bias: Evaluating the
Disproportionate-Enforcement Critique, 66 J.L. & Contemp. Probs. 49 (2003)
[hereinafter Enforcing Bias Crime Laws Without Bias]; Frederick M. Lawrence,
Violence-Conducive Speech: Punishable Verbal Assault or Protected Political Speech?
in Freedom of Speech and Incitement Against Democracy 11 (David Kretzmer &
Francine Kershman Hazan eds., 2000); Frederick M. Lawrence, The Punishment of Hate:
Toward a Normative Theory of Bias-Motivated Crimes, 93 Mich. L. Rev. 320 (1994)
[hereinafter The Punishment of Hate]; Frederick M. Lawrence, Resolving the Hate
Crimes/Hate Speech Paradox: Punishing Bias Crimes and Protecting Racist Speech, 68 Notre
Dame L. Rev. 673 (1993) [hereinafter Hate Crimes/Hate Speech Paradox].
[3] Part II was written by Professor Lawrence.
[4] This discussion of the nature of bias crimes and of
their resulting harms is a condensed summary of Lawrence, Punishing Hate, supra note
2, at 29-44.
[5] See, e.g., Federal Sentencing Guidelines, 18
U.S.C.A. § 3A1.1; Ala. Code. § 13A-5-13 (1994); Alaska Stat. § 12.55.155
(Michie 2002), amended by Act of Sept. 11, 2003, S.B. 85, 22d Leg. (Alaska 2003);
Ariz. Rev. Stat. Ann. § 13-702 (West Supp. 2003); Ark. Code Ann. § 16-123-106
(Michie Supp. 2003); Cal. Penal Code § 422.75 (West 1999); Colo. Rev. Stat. §
18-9-121 (Supp. 2003); Conn. Gen. Stat. § 53a-181j (2003); D.C. Code Ann. §
22-3703 (2001); Del. Code Ann. tit. 11, § 1304 (2001); Fla. Stat. Ann. § 775.085
(West 2000); Haw. Rev. Stat. § 706-662 (1999), amended by Act of Apr. 23, 2003,
S.B. 616, 22d Leg. (Haw. 2003); Idaho code § 18-7902 (Michie 1997); 720 Ill. Comp.
Stat. Ann. 5/12-7.1 (West 2002), amended by Act of Aug. 8, 2003, S.B. 407, 93rd Leg.
(Ill. 2003); Ind. Code Ann. § 10-13-3-1 (West Supp. 2003); Iowa Code Ann. § 712.9
(West 2003); Kan. Crim. Code Ann. § 21-4003 (West Supp. 2003); Ky. Rev. Stat. Ann.
§ 532.031 (Michie Supp. 2003); La. Rev. Stat. Ann. § 14:107.2 (West Supp. 2004);
Me. Rev. Stat. Ann. tit. 17-A, § 1151 (West Supp. 2003); Md. Code Ann., Crim. Law
§ 10-305 (2002); Mass. Gen. Laws ch. 265, § 39 (2002); Mich. Comp. Laws Ann.
§ 750.147b (Michie 2003); Minn. Stat. Ann. § 609.749 (West 2003); Miss. Code Ann.
§ 99-19-301 (1994); Mo. Rev. Stat. § 557.035 (2000); Mont. Code Ann. §
45-5-222 (2002); Neb. Rev. Stat. Ann. § 28-111 (Michie 2003); Nev. Rev. Stat. Ann.
193.1675 (Michie Supp. 2003); N.H. Rev. Stat. Ann. § 651:6 (Supp. 2003); N.J. Stat.
Ann. § 2C:16-1 (West Supp. 2003); N.M. Stat. Ann. § 31-18B-3 (Michie Supp. 2003);
N.Y. Penal Law § 485.05 (McKinney Supp. 2004); N.C. Gen. Stat. § 15A-1340.16
(2003); N.D. Cent. Code § 12.1-14-04 (1997); Ohio Rev. Code Ann. § 2927.12
(Anderson 2003); Okla. Stat. Ann. tit. 21, § 850 (West 2002); Or. Rev. Stat. §
166.165 (2001); 18 Pa. Cons. Stat. § 2710 (West 2003); R.I. Gen. Laws § 12-19-38
(2002); S.D. Codified Laws § 22-19B-1 (Michie 1998); Tenn. Code Ann. § 40-35-114
(2003); Tex. Penal Code Ann. § 12.47 (Vernon Supp. 2004); Utah Code Ann. §
76-3-203.3 (2003); Vt. Stat. Ann. tit. 13, § 1455 (Supp. 2002); Va. Code Ann. §
18.2-57 (Michie 1996); Wash. Rev. Code Ann. § 9A.36.080 (West 2000); W. Va. Code Ann.
§ 61-6-21 (Michie 2000); Wis. Stat. Ann. § 939.645 (West Supp. 2003); Wyo. Stat.
Ann. § 6-9-102 (Michie 2003).
[6] See sources cited supra note
5.
[7] See Lawrence, Punishing Hate, supra
note 2, at 11-20.
[8] See, e.g., Gordon W. Allport, The Nature
of Prejudice 56-59 (1st ed. 1954); Erving Goffman, Stigma: Notes on the Management of
Spoiled Identity 7-17, 130-35 (1963); Robert M. Page, Stigma 1, 13-14
(1984).
[9] See, e.g., Ernest Harburg et al.,
Socio-Ecological Stress, Suppressed Hostility, Skin Color, and Black-White Male Blood
Pressure: Detroit, 35 Psychosomatic Medicine 276, 292-94 (1973); Kenneth B. Clark,
Dark Ghetto: Dilemmas of Social Power 82-90 (1965).
[10] See, e.g., Irwin Katz, Stigma: A Social
Psychological Analysis 1-4 (1981); Harry H. L. Kitano, Race Relations 125-26
(1974); Ari Kiev, Psychiatric Disorders in Minority Groups, in Psychology and
Race 416, 420-24 (Peter Watson ed., 1973).
[11] Allport, supra note
8, at 49-65 (discussing the degrees of
prejudicial action from "antilocution," to discrimination, to violence).
[12] See Lawrence, Punishing Hate,
supra note 2, at 40-41.
[13] See id. at 41-42.
[14] See id.
[15] See, e.g., Robert Elias, The Politics of
Victimization 116 (1986); Andrew Karmen, Crime Victims: An Introduction to Victimology
262-63 (2d ed. 1990); Jack Levin & Jack McDevitt, Hate crimes: The Rising Tide of
Bigotry and Bloodshed 205, 220-21, 234 (1993).
[16] See Lawrence, Punishing Hate,
supra note 2, at 43-44.
[17] See id.
[18] See, e.g.,Jennifer L. Hochschild,
Facing Up to the American Dream: Race, Class, and the Soul of the Nation 214-21
(1996).
[19] See, e.g., Andrew Hacker, Two Nations:
Black And White, Separate, Hostile, Unequal 3-16 (1992).
[20] Part III was written by Ms. Gellman.
[21] See, e.g., Ala. Code § 13A-5-13
(1994).
[22] The offenses covered by bias-crime laws vary
among jurisdictions. In Ohio, only five offenses are subject to grade and penalty
enhancement when they are committed "by reason of" another's race, religion,
etc. See Ohio Rev. Code Ann. § 2927.12 (Anderson 2003). Those offenses involve
only expressive conduct: aggravated menacing, menacing, criminal damaging or endangering,
criminal mischief, and telecommunications harassment. See Ohio Rev. Code Ann.
§§ 2903.21-.22, 2909.06-.07, 2917(A)(3)-(5) (Anderson 2003)
(defining the five crimes in § 2927.12). It is interesting to note that assault and
other violent crimes are not included. See id.
[23] The extra penalty is specifically for the
bigoted or biased motive. "Those who developed the guidelines for hate crime data
collection recognized that hate crimes are not separate, distinct crimes; instead they are
traditional offenses motivated by the offender's bias." Fed. Bureau of
Investigation, U.S. Dep't of Justice, Crime in the United States: Uniform Crime
Reports61 (2002), available at
http://www.fbi.gov/ucr/cius_02/pdf/2sectiontwo.pdf.
[24] See Griswold v. Connecticut, 381 U.S.
479, 482 (1965) ("The right of freedom of speech and press includes . . . freedom of
thought. . . ."); R.A.V. v. City of St. Paul, 505 U.S. 377, 391-93 (1992).
[25] See Gellman, Sticks and Stones,
supra note 1, at 376-78 (citing U.S. v.
O'Brien, 391 U.S. 367, 377 (1968) (holding that the government can infringe upon First
Amendment interests in regulating conduct so long as the infringement is incidental and the
government interest in regulating the conduct is "unrelated to the suppression of free
expression")).
[26] See, e.g., Ohio Rev. Code Ann. §
2927.12 (West 1997).
[27] To the authors' knowledge, almost everyone
debating the issue, including the authors of this Essay, would agree that it is irrelevant
that a bigoted viewpoint is "bad" and that an anti-bigoted one is
"good." The First Amendment forbids the government from favoring either side of a
social or political debate. See W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624,
642 (1943) ("If there is any fixed star in our constitutional constellation, it is that
no official, high or petty, can prescribe what shall be orthodox in politics, nationalism,
religion, or other matters of opinion. . . ."). After all, if this opinion were truly
universal, there would be no bias crimes.
[28] See Gellman, Sticks and Stones,
supra note 1, at 363-68 (citing People v.
Weiss, 300 N.Y. 249, 255 (1937), rev'd, 12 N.E.2d 514 (1938); Black's Law
Dictionary 813, 1034 (7th ed. 1999) ("Intent: the state of mind accompanying an
act," and "Motive: something, esp. willful desire, that leads one to
act")).
[29] See State v. Wyant, 64 Ohio St. 3d 566,
572 (1992), vacated on other grounds, 508 U.S. 969 (1993).
[30] See Gellman, Sticks and Stones,
supra note 1, at 333-34.
[31] See Andrew E. Taslitz, Condemning the
Racist Personality: Why the Critics of Hate Crimes Legislation Are Wrong, 20 B.C. L.
Rev. 739, 742 (1999).
[32] See, e.g., New York v. Ferber, 458 U.S.
747, 763-64 (1982) (holding that child pornography is material that can be treated as
"without the protection of the First Amendment").
[33] See James B. Jacobs & Kimberly
Potter, Hate Crimes: Criminal Law and Identity Politics 113 (1998). The idea of carving out
a hate-speech exception to the First Amendment has been proposed by some scholars but it has
not been accepted by the courts. See, e.g., Mari J. Matsuda, Public Response to
Racist Speech: Considering the Victim's Story, 87 Mich. L. Rev. 2320, 2356-58
(1989).
[34] See, e.g., Brian S. MacNamara,
Commentary: New York's Hate Crimes Act of 2000: Problematic and Redundant
Legislation Aimed at Subjective Motivation, 66 Ala. L. Rev. 519, 535 (2003).
[35] For example, in 2002, Minnesota reported 203
hate crimes; Mississippi reported three. See Fed. Bureau of Investigation, U.S.
Dep't of Justice, Crime in the United States 2002: Crime Index Offenses Reported 63
tbl.2.36 (2002), available at http://www.fbi.gov/ucr/cius_02/html/web/offreported/02-nhatecrime12.html#t236
[hereinafter FBI Crime Statistics]. Both states had both criminal and reporting laws.
See Anti-Defamation League, State Hate Crimes Statutory Provisions (2003),
available at
http://www.adl.org/learn/hate_crimes_laws/state_hate_crime_statutory_provisions_chart.pdf
[hereinafter ADL Laws Chart]. See also Minn. Stat. Ann. § 609.749 (West 2003)
(imposing additional penalties where the offender selects his or her victim based on race,
color, religion, sex, sexual orientation, disability, age, or national origin); Minn. Stat.
Ann. § 626.5531 (West 2003) (requiring the reporting of crimes believed to have been
motivated by the victim's race, religion, national origin, sex, age, disability, or
sexual orientation); Miss. Code Ann. § 99-19-301 (1994) (enhancing the penalty for
crimes committed because of the victim's race, color, ancestry, ethnicity, religion,
national origin, or gender). In 2002, South Carolina had only an institutional vandalism
criminal statute and no reporting law. See supra ADL Laws Chart. See also S.C.
Code Ann. § 16-11-535 (Law. Co-op. 2003) (imposing a penalty of imprisonment of not
less than six months nor more than ten years, or a fine of not more than ten thousand
dollars, or both, for malicious injury to a place of worship). It reported 70 hate crimes
that year. See supra FBI Crime Statistics at 63.Indiana and Arkansas, both
with the same two types of laws, reported 77 and zero hate crimes, respectively. See
id.; ADL Laws Chart. See also Ind. Code Ann. § 10-13-3-1 (West Supp. 2003)
(defining hate crimes); Ark. Code Ann. § 16-123-106 (Michie Supp. 2003) (providing
injunctive relief or civil damages against the perpetrators of hate crimes).
[36] See Amardeep Singh, "We Are Not
the Enemy": Hate Crimes Against Arabs, Muslims, and Those Perceived To Be Arab or
Muslim After September 11, 14 Hum. Rts. Watch No. 6 (G) (2002); Associated Press,
Hate Crimes Decrease in 2002, Nov. 12, 2003, available at
http://www.cnn.com/2003/LAW/11/12/hate.crimes.ap/.
[37] See supra note
35.
[38] See Anti-Defamation League, Model Hate
Crime Legislation (1999), available at
http://www.adl.org/99hatecrime/text_legis.asp.
[39] See, e.g.,Anti-Defamation League,
Hate Crimes Statutes: A Response To Anti-Semitism, Vandalism And Violent Bigotry (1988);
Anti-Defamation League, Hate Crimes Statutes: A Response To Anti-Semitism, Vandalism And
Violent Bigotry (1990); Anti-Defamation League, Hate Crimes Laws (1997); Anti-Defamation
League, Hate Crimes Laws (1998); Anti-Defamation League, Hate Crimes Laws (1999). See
also infra at note 48.
[40] See Shirley S. Abrahamson et al.,
Words and Sentences: Penalty Enhancement for Hate Crimes, 16 U. Ark. Little Rock L.
Rev. 515, 525 n.35 (1994) (noting the absence of evidence substantiating the deterrent
effect of bias-crime legislation).
[41] See generally Lawrence, Punishing
Hate, supra note 2, at 22-25.
[42] See, e.g., Phillip Reed,
Agencies: Crimes Fueled By Hate Few, Arkansas Submits Little Data to FBI, Arkansas
Democrat-Gazette, Mar. 30, 2003, at A19.
[43] See generally Lawrence, Punishing
Hate, supra note 2, at 22-25.
[44] See Project, Crimes Motivated By
Hatred: The Constitutionality And Impact of Hate Crime Legislation in the United States,
1 Syracuse J. Legis. & Pol'y 29, 64-65 (1995).
[45] The ADL Audits are available on its website but
the tables of statutes and the Audits are not presented together. In addition, the Audits
are limited to anti-Semitic incidents, not any other types of hate crimes. See,
e.g.,Anti-Defamation League, Audit of Anti-Semitic Incidents (1999),
available at http://www.adl.org/1999_Audit/Executive_Summary.asp;
http://www.adl.org/learn/hate_crimes_laws/state_hate_crime_statutory_provisions_chart.pdf
(last visited Apr. 21, 2004). The FBI website gives greatly detailed statistics, but again,
no indication of any correlation with hate-crimes statutes. See, e.g,Fed.
Bureau of Investigation, U.S. Dep't of Justice, Hate Crime Statistics (1999),
available at http://www.fbi.gov/ucr/ucr.htm#hate.
[46] Although most states now have some sort of
hate-crime statute, the FBI statistics show no clear correlation. See FBI Crime
Statistics, supra note 35.
[47] Press Release, Anti-Defamation League, ADL Finds
Anti-Semitic Incidents Remain Constant (Mar. 24, 2004), available at
http://www.adl.org/PresRele/ASUS_12/4464_12.htm.
[48] USA Patriot Act of 2001, Pub. L. No. 107-56, 115
Stat. 272 (2001) (codified in scattered sections of 18 U.S.C.). See, e.g.,John W. Whitehead & Stephen H. Aden, Forfeiting "Enduring Freedom" for
"Homeland Security": A Constitutional Analysis of the USA Patriot Act and the
Justice Department's Anti-Terrorism Initiatives, 51 Am. U. L. Rev. 1081,
1098-1100 (2002); David Cole, Enemy Aliens, 54 Stan. L. Rev. 953, 956-60,
975-77, 985-88 (2002).
[49] See, e.g., Dana B. Weiss, Protecting
America First: Deporting Aliens Associated With Designated Terrorist Organizations That Have
Committed Terrorism in America in the Face of Actual Threats to National Security, 50
Clev. St. L. Rev. 307, 324-34 (2002-2003).
[50] See, e.g., Ctr. for Nat'l. Sec.
Studies v. U.S. Dep't. of Justice, 331 F.3d 918 (D.C. Cir. 2003); In re Sealed
Case, 310 F.3d 717 (For. Intel. Surv. Rev. 2002); Humanitarian Law Project v. Ashcroft, 2004
WL 112760 (C.D. Cal. 2004); Miller v. U.S. Parole Comm'n, 259 F. Supp. 2d 1166 (D. Kan.
2003); Padilla ex rel. Newman v. Bush, 233 F. Supp. 2d 564 (S.D.N.Y. 2002).
[51] See, e.g., Frank Davies, Secrecy
Cloaks Patriot Act: Administration Loath to Spell Out How Law Being Used, Seattle Times,
Sept. 9, 2002, at A4.
[52] 508 U.S. 476 (1993) (upholding the enhancement
of defendant's sentence for intentionally selecting his victim based on race as not
violating defendant's right to free speech by purportedly punishing his biased
beliefs).
[53] See, e.g., Eugene Volokh, The
Mechanisms of the Slippery Slope, 116 Harv. L. Rev. 1026, 1130-33 (2003).
[54] See generally Arthur Herman, Joseph
McCarthy: Re-Examining the Life and Legacy of America's Most Hated Senator (2000).
[55] See Lawrence, Punishing Hate,
supra note 2, at 46-48.
[56] See United States. ex rel. Jordan
v. Bosse, 41 F.Supp. 2d 812, 817 (N.D. Ill. 1999).
[57] This may depend, however, on the facts of a
specific assault. Sometimes the victim is not aware of the bias motive that really is there,
and sometimes the victim, or someone else, mistakenly perceives a bias motive that the
offender did not really have.
[58] See Michel Rosenfeld, Hate Speech in
Constitutional Jurisprudence: A Comparative Analysis,24 Cardozo L. Rev. 1523
(2003).
[59] See Gellman, Sticks and Stones,
supra note 1, at
389-91; Susan Gellman, The First Amendment in a Time That Tries Men's
Souls, 65 Law & Contemp. Probs. 87, 89 (2002).
[60] See Gerald N. Rosenberg, The Hollow Hope:
Can Courts Bring About Social Change? 336 (1991) (noting that efforts to use the courts to
achieve social reform have thus far been disappointing).
[61] See Jacobs & Potter, supra
note 33, at 91.
[62] See, e.g., Martha Minow, Breaking the
Cycles of Hatred: Memory, Law and Repair 48 (2002) ("Hate crimes prosecutions zero in
on the one with the gun, not the one with the hate-filled talk radio show, the anti-women
rap music, the neo-Nazi website, or the homophobic preacher."); Gellman, Sticks and
Stones, supra note 1, at 389; Jacobs &
Potter, supra note 33, at 91.
[63] See infra Part IV.C.
[64] See generally Gellman, Sticks and
Stones, supra note 1; Gellman, Hate Crime Laws
After Wisconsin v. Mitchell, supra note 1.
[65] See generally Frederick M. Lawrence,
The Case For a Federal Bias Crime Law, 16 Nat'l Black L.J. 144 (1999-2000);
Lawrence, The Punishment of Hate, supra note
2; Lawrence, Punishing Hate, supra note
2.
[66] See, e.g.,Jacobs & Potter,
supra note 33, at 79-88, 90-91.
[67] See sources cited supra notes
8-11.
[68] See Taryn F. Goldstein, Cultural
Conflicts in Court: Should the American Criminal Justice System Formally Recognize a
"Cultural Defense"?, 99 Dick. L. Rev. 141, 156 (1994); see also Thomas
E. Baker & Fletcher N. Baldwin, Jr., Eighth Amendment Challenges to the Length of a
Criminal Sentence: Following the Supreme Court "From Precedent to Precedent,"
27 Ariz. L. Rev. 25, 26 (1985).
[69] See Jeffrey Fagan, Atkins,
Adolescence, and the Maturity Heuristic: Rationales for a Categorical Exemption for
Juveniles From Capital Punishment, 33 N.M. L. Rev. 207, 241-42 (2003); Miguel A.
Méndez, Solving California's Intoxication Riddle, 13 Stan. L. &
Pol'y Rev. 211, 221-22 (2002); Michael H. Hoffheimer, Murder and Manslaughter
in Mississippi: Unintentional Killings, 71 Miss. L.J. 35, 105-12 (2001).
[70] See Lawrence, Punishing Hate,
supra note 2; see generally Aaron J.
Rappaport, Rationalizing the Commission: The Political Premises of the U.S. Sentencing
Guidelines, 52 Emory L.J. 557, 567-68 (2003).
[71] See, e.g., Model Penal Code § 210
(1985) (demonstrating grades of criminal homicide determined by culpability of the
accused).
[72] The Model Penal Code defines "criminal
homicide" as "purposely, knowingly, recklessly or negligently causing the death of
another." Id. § 210.1(1). Criminal homicide that is committed recklessly
constitutes manslaughter. See id. § 210.3(1)(a).
[73] See id. § 211.2 (stating
reckless risk of death is a misdemeanor). Twenty-one states follow this approach. See
Appendix for complete list of state statutes and how each state characterizes reckless
endangerment.
[74] See sources cited supra note
1.
[75] See, e.g., David E. Bernstein,
Defending the First Amendment from Antidiscrimination Laws, 82 N.C. L. Rev. 223,
240-41 (2003); Robert A. Sedler, The Unconstitutionality of Campus Bans on
"Racist Speech": The View from Without and Within, 53 U. Pitt. L. Rev. 631,
683 (1992); Stephen Fleischer, Campus Speech Codes: The Threat to Liberal Education,
27 J. Marshall L. Rev. 709, 738-40 (1994).
[76] See, e.g., Lawrence, The Hate
Crimes/Hate Speech Paradox, supra note 2,
at 698-705.
[77] See R.A.V. v. City of St. Paul, 505 U.S.
377, 382 (1992).
[78] See id.
[79] See id. at 414.
[80] See Texas v. Johnson, 491 U.S. 397, 414
(1989).
[81] See Brandenburg v. Ohio, 395 U.S. 444,
447-48 (1969).
[82] Virginia v. Black, 538 U.S. 343 (2003).
[83] Va. Code. Ann. § 18.2-423 (Michie 1991)
(enacted in 1950). The prima facie provision was added to the statute in 1968.
[84] See Virginia v. Black, 538 U.S. at
352-58.
[85] Id. at 348.
[86] Id.
[87] Id. at 350.
[88] See id. at 350-51.
[89] Id. at 351.
[90] See Black v. Virginia, 555 S.E.2d 738
(Va. 2001).
[91] 505 U.S. at 377.
[92] See Black v. Virginia, 553 S.E.2d at
738.
[93] See Virginia v. Black, 538 U.S. at
351-52.
[94] See id. at 364-67
(O'Connor, J.); id. at 380-87 (Souter, J., concurring in part and
dissenting in part).
[95] R.A.V., 505 U.S. at 380.
[96] See Virginia v. Black, 538 U.S. at
362-63.
[97] See V.A. Code Ann. § 18.2-423
(Michie 1991).
[98] See Virginia v. Black, 538 U.S. at
365-67 (O'Connor, J.); id. at 385-86 (Souter, J., concurring in part
and dissenting in part); id. at 369-72 (Scalia, J., concurring in part and
dissenting in part).
[99] See supra note 57.
[100] See Lawrence, Punishing Hate,
supra note 2, at 106-09.
[101] 28 U.S.C. § 534 (2000).
[102] See Lawrence, Enforcing Bias Crimes
Laws Without Bias, supra note 2, at 55-60 (discussing how varying definitions of
bias-based crime, lack of information from law enforcement agencies that chose not to
voluntarily report statistical information to the FBI, and underreporting by bias crime
victims who distrust the police or fear retaliation lead to flaws in data concerning the
levels of bias-motivated crime).
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Harvard Journal on Legislation (JOL) - Volume 41, Number 2, Summer 2004
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